Uncategorized —

Appeals court kills broadcast flag

The US Court of Appeals dealt a blow to the FCC (and entertainment industry) …

The Federal Communications Commission's broadcast flag has been shot down by the US Court of Appeals for the District of Columbia. In a ruling released today, the court found that the FCC had "exceeded the scope of its delegated authority" when it created the requirement. From the opinion (PDF):

The insurmountable hurdle facing the FCC in this case is that the agency's general jurisdictional grant does not encompass the regulation of consumer electronics products that can be used for receipt of wire or radio communication when those devices are not engaged in the process of radio or wire transmission.

Essentially, the broadcast flag requirement meant that all devices capable of receiving digital television broadcasts made after July 1, 2005 be able to recognize and respect a flag transmitted along with the content indicating that it was protected. As a result, viewers would be limited in their ability to record and copy digital broadcasts.

In March 2004, the American Library Association and a handful of other groups filed an appeal of the original FCC rule. The core of the argument was that the FCC had no business telling consumer electronics manufacturers how to design their products without a specific mandate from Congress. Other, similar FCC directives such as closed captioning and V chips both resulted from legislation passed by Congress.

The broadcast flag is a 2003 FCC creation that was ostensibly designed to spur adoption of digital television by clamping down on "television piracy." According to that line of reasoning, if content creators could be sure that their programming could not be shared (or even recorded), they would be far more likely to embrace digital TV. Of course, with the viewing and usage of content being heavily restricted, it is hard to argue that it benefits consumers.

Today's ruling is not only a stern rebuke of the FCC, but also a blow to the MPAA. It seems as though much of the entertainment industry's energy in the past few years has been devoted to getting the government to respond to challenges posed by changing technology and market conditions on its behalf. Of course, consumers are not free yet. With the FCC not being able to help them, it is likely that industry lobbyists will now turn their attention towards Capitol Hill. But for now, consumers will be able to enjoy digital broadcasts without limitations on time-shifting and their ability to use broadcasts for personal use within the scope of the law.

Eric Bangeman
Eric has been using personal computers since 1980 and writing about them at Ars Technica since 2003, where he currently serves as Managing Editor. Twitter@ericbangeman